Orthet Ltd v Sarah Vince-Cain
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,Lord Justice Sedley,LORD JUSTICE SEDLEY |
| Judgment Date | 25 November 2004 |
| Neutral Citation | [2004] EWCA Civ 1613 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A2/2004/1893 |
| Date | 25 November 2004 |
[2004] EWCA Civ 1613
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE MCMULLEN,
MRS M MCARTHUR and MS B SWITZER)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Peter Gibson
Lord Justice Sedley
A2/2004/1893
A2/2004/0678
MR FRANKLIN EVANS (instructed by Messrs Sheridan & Stretton, London W6 0DT) appeared on behalf of the Applicant
MR THOMAS COGHLIN (instructed by Messrs Tobins Solicitors LLP) appeared on behalf of the Respondent
I will ask Lord Justice Sedley to give the first judgment.
This case was last before this court on 24th June 2004, at a time when one appeal against the Employment Tribunal's decision had been heard by the Employment Appeal Tribunal but another was still pending. We stood out the application for permission to appeal which was then before us after hearing quite lengthy argument, for reasons which are fully recorded in the judgment given on that occasion.
The case now comes back before us, we understand at the instance of the Civil Appeals Office, firstly in order that the employer can press the adjourned application and secondly so that it may seek permission to appeal against part of the EAT's more recent decision, given on 12th August 2004. The latter application is made direct to the court, we are told at the employee's suggestion, without having been first considered on the papers by a single Lord Justice. The reason for the employee's suggestion was that the employer was in any event proposing to restore the earlier application, although it appears that it was in fact the court's initiative, so that both things might as well be dealt with at a single hearing. It is not perhaps for the parties to decide how a court should allocate its time, but since we are here let us deal with both applications.
It is convenient, for reasons I will come to in a moment, to take the second matter first. By a draft appellant's notice, the employer seeks permission to argue in this court that the Employment Tribunal erred in law in taking an approach to compensation which assumed legal causation of all the claimed loss and went directly, but inappropriately, to the reasonableness of the steps taken by the employee to mitigate it, and that the Employment Appeal Tribunal erred in upholding this approach.
Mrs Vince-Cain was employed from 1992 as a store manager and from 1995 as a regional manager in Orthet's large retail business. Her adverse treatment and ultimate dismissal in October 2001 following two periods of maternity leave resulted in an Employment Tribunal finding of sex discrimination, victimisation, breach of contract and unfair dismissal.
Mrs Vince-Cain retrained by undertaking a four-year degree course in dietetics. The Employment Tribunal concluding that she had acted reasonably throughout in mitigating her loss and in the expenses she incurred in so doing. They awarded her, as part of her consequential loss, the equivalent of her salary for three-quarters of that time: three-quarters because she took paid work during the university vacations. She limited her claim to those four years. Her earning capacity as a dietitian may now exceed what she earned in Orthet's employment. But the Employment Tribunal accepted the evidence of the only employment expert called before it that Mrs Vince-Cain's history of litigation against her former employer would work against her in the labour market.
Mr Evans for Orthet submits that the Employment Tribunal has approached the computation of loss incorrectly. First, he says, they should have given the employer credit for the employee's now enhanced earning capacity. In a field which is not short on authorities, Mr Evans has not been able to show us any reported support for this as a proposition of law. In my view, it does not fit logically with the principles of calculation and mitigation of loss because it seeks to transmute the mitigation of the wronged party's loss into a source of benefit to the wrongdoer. Nor does it appeal to a sense of justice, as the decision of Rougier J in Woodrow v Whitbread ( 10th December 2001, unreported) demonstrates. In fact, the evidence showed that Mrs Vince-Cain had restarted work as a dietitian at not much more than half her previous salary. It was only because she chose to limit the purchase of her claim to the period of retraining that the claim was not larger.
Next it is argued by Mr Evans that the employee did not need to retrain because other work, some of it equally well paid, was already available to her. The Employment Tribunal went into this. They found that Mrs Vince-Cain, before embarking on retraining, had made all reasonable efforts to find suitable employment with the flexibility she wanted (and had had with Orthet) for...
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